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Click here for the full text of this decision FACTS:On Jan. 16, 2004, John Arlin Walters drove his red truck with a trailer to the Tabernacle Baptist Church parking lot to test some new brakes. He did not drive far: John lived next door to the church. He saw the church’s new pastor, David Peacock, and his wife, Sunshine, standing outside the church. John got out to visit and to tell Pastor Peacock that he had enjoyed the Sunday sermon. As John talked to the Peacocks, his brother Russell Walters pulled up in his truck with his wife Jerri. John was not expecting to see his brother because of longstanding animosity between the two brothers over land, cattle, fences, taxes, insurance and bills. Neither enjoyed their meetings. On this day, Russell wanted to talk to John about a water bill. Jerri stayed in their truck while Russell walked over to John. John introduced Russell to the Peacocks, who soon went into the church. The brothers started to argue. Jerri heard John say, “I’ve got the pasture leased for five years, and I’m not paying a damn thing.” She saw John walk back to his truck and heard him say, “I’m leaving. I’ve got work to do.” Russell followed him, saying, “I know the joints you go to.” Jerri could not hear John’s response, but she saw him get into his truck. Russell followed him and stood beside the truck door. John started his truck motor and began moving forward while Russell walked beside him. John then sped up a bit, stopped the truck, got out, turned around and shot Russell twice. According to Jerri, it was “totally unexpected. They � they didn’t even seem, really, to be fussing other than when � his tone of voice was a little angry. But it had been � they had had conversations like that before, and nothing ever happened, you know. [John] would always walk off.” After hearing the gunshots, Jerri screamed, jumped out of truck, looked up, and thought that John might shoot her next. She ducked down and got back into her truck. John got into his truck, backed out, and, as he was pulling out of the parking lot, told Jerri, “I’m going to call for help.” He drove to his home next door and called 911. Jerri ran to Russell. David came out of the church and said he had called 911. The Peacocks had been on the steps of the baptistery when they heard the shots. They both testified that there was a pause between the two shots � enough time for them to look at each other like “Was that what I thought it was?” Corporal Moon from the sheriff’s office was first on scene. He called EMS. Meanwhile Beth Hankins, a registered nurse and first responder, tended to Russell. An ambulance transported Russell to the hospital, where he was pronounced dead. According to the medical examiner, Russell had been shot twice: one shot entered the left side of Russell’s neck and exited the right side of his back; the other entered the right side of Russell’s lower back and went out the right side of the chest. Either shot could have been lethal. Deputies Hill and Scott went to John’s home. John had been talking on the phone to the 911 operator, who, upon learning that John was the suspect, had called him back. John had agreed to surrender peacefully and did s “We hand-cuffed him, and he went to trying to say a few things.” Scott told John not to say anything and read him his Miranda warnings. As he was being read his rights, John “looked at his wife and stated, ‘I just got tired of him threatening me.’ ” The deputies again told him to be quiet. At trial, John testified that he shot his brother in self-defense with a gun that he kept in his truck for use when “checking my cattle, maybe shooting snakes or varmints.” According to John, when he started to leave the church parking lot, he told Russell not to come asking for money anymore. Russell said that he would “come looking for” John and that John wouldn’t like it. As John started to drive off, Russell was “as mad as the . . . as the devil” and said, “I’m going to stop you today, once and for all.” Russell then reached toward the door of his truck and opened it. John, scared for his life, stepped out, put one foot on the pavement and shot his brother. John said that he was afraid Russell would shoot him through the door. John testified that his fear was well-founded, because Russell had twice before threatened him with a gun. A jury rejected John’s self-defense claim and found him guilty of murder. On direct appeal, John claimed that the trial judge erred in failing to instruct the jury that it could consider previous verbal threats in deciding the issue of self-defense. John also asserted that the trial judge violated the rule of optional completeness under Texas Rule of Evidence 107 when he allowed a 911 operator to testify that he asked John if he wanted to talk about what had happened but excluded John’s response to the operator from testimony. The 6th Court of Appeals unanimously found that the trial court’s failure to instruct the jury concerning previous verbal threats was reversible error. The 6th Court ultimately reversed and remanded the case for a new trial. HOLDING:Vacated and remanded. First, the CCA held that the 6th Court mistakenly concluded that John was entitled to a jury instruction on previous verbal threats. The CCA explained that after the enactment of the 1974 Penal Code, the CCA re-examined that traditional position � that Texas law gave the defendant the right to require the trial court to submit to the jury any defensive theory supported by the evidence � and recognized that instructions on defensive theories not set out in the 1974 Penal Code were inconsistent with the Legislature’s intent. In a series of more recent cases, the CCA noted, the CCA has held that if the defensive theory is not explicitly listed in the Texas Penal Code and merely negates an element in the state’s case, rather than independently justifying or excusing the conduct, the trial judge should not instruct the jury on it. Thus, the CCA held that, generally speaking, neither the defendant nor the state is entitled to a special jury instruction relating to a statutory offense or defense if that instruction: 1. is not grounded in the Texas Penal Code; 2. is covered by the general charge to the jury; and 3. focuses the jury’s attention on a specific type of evidence that may support an element of an offense or a defense. In such a case, the CCA stated, the nonstatutory instruction would constitute a prohibited comment on the weight of the evidence. Accordingly, John was not entitled to a jury instruction on “prior verbal threats.” Second, the CCA held that under the facts of the case, the trial court abused its discretion in excluding John’s response to the 911 operator’s question; however, the CCA found that error to be nonconstitutional. In this case, the CCA found that the state opened the door to the admission of the second 911 call to correct a false impression created by the state’s questioning of witnesses. The state played the initial 911 call three times for the jury. During closing argument, the state stressed John’s preternatural “calmness” and inaccurately asserted that John never told the 911 operator that he shot his brother. But the CCA deemed that statement untrue. John did tell the 911 operator during the second 911 call that he had shot his brother and that he did so in self-defense, but the state successfully objected to that evidence. Thus, the CCA found that the state created a false impression by successfully preventing John from offering this evidence, and then it capitalized on and compounded the false impression at closing. The CAA, however, concluded that the error in not admitting the evidence was not of a constitutional dimension. Rather, the CCA deemed the erroneously excluded evidence relevant to John’s self-defense theory, but found that its exclusion did not prevent John from presenting a defense. Rather, this testimony would have only furthered John’s defensive theory incrementally. OPINION:Cochran, J., delivered the opinion of the court, in which Keller, P.J., and Price, Womack, Johnson, Keasler, Hervey and Holcomb, JJ., joined. Meyers, J., did not participate.

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